Validity by reason of native title
Whether act of construction attributable to State
26 The further aspect is whether there was any invalidity by reason of native title. Such invalidity could only arise by operation of the Racial Discrimination Act 1975 (Cth), the church having been built after 31 October 1975. The TVA provides for confirmation of extinguishment under Pt 2B in s 12I and s 12J. The former is not applicable here as there is no grant of freehold or a lease. The latter applies to public works but only provides for extinguishment of previous exclusive possession acts under s 23B(7) of the NTA where those are 'attributable to the State'.
27 The phrase 'attributable to the State is defined by s 239 of the NTA as follows:
'239 An act is attributable to the Commonwealth, a State or a Territory if the act is done by:
(a) the Crown in right of the Commonwealth, the State or the Territory; or
(b) the Parliament or Legislative Assembly of the Commonwealth, the State or the Territory; or
(c) any person under a law of the Commonwealth, the State or the Territory.'
28 The first applicants submit that the construction of the church is not 'attributable to the State'. It is contended that none of the requirements of s 239 are satisfied here. It is said this case is quite different from that in Erubam Le (Darnley Islanders) v State of Queensland (2003) 134 FCR 155 where the works were constructed by the local council and the State. The term 'under a law of the State' must mean more than just a private person or organisation constructing their own building where such a building requires the permit of the State before it can be constructed as that would cover most buildings.
29 In reply the first respondents submit that because lawful authority for construction was given pending the creation of the reserve, the construction of the church was done by a person 'under a law of…the State…', namely the Land Act, so that the act of construction was attributable to the State within the requirements of s 239 of the NTA.
30 The phrase 'under a law of …the State…' is in different terms to either of the phrases in issue in s 253 of the NTA, namely 'by or on behalf of the Crown' and 'with the authority of the Crown'. The phrase now in issue arises in the context of s 239. That section is concerned with attribution. The Macquarie Dictionary at p 106 defines 'attribute' to include the meaning of 'something attributed as belonging'. Paragraph (a) and par (b) include acts done by the Crown and the Parliaments of the Commonwealth, State and Territories; that is, acts intrinsically belonging to the State. It is in that context that par (c) must be understood. When it refers to 'any person under a law of the Commonwealth, the State or the Territory' it is speaking of a person who is given the authority of the State to do that act. It therefore seems to me that it is not addressing a person who has obtained the authority of the State under a provision in a law of the State; it is someone whose act is attributable to the State because the State by a law has authorised that person to do the act, not merely authorised all persons to apply for an authority by some process. Thus understood, par (c) is consistent with the notion of 'attributable' and consistent with pars (a) and (b) in satisfying the element of closeness to the State and so belonging to it.
31 It follows that I do not consider the act of construction can satisfy the requirement of s 12J(1)(a) of the TVA that it is a previous exclusive possession act which is 'attributable to the State'. Likewise it cannot satisfy the same requirement in s 5 of the TVA which validates every past act 'attributable to the State'.
Alternative submission
32 The first respondents submit in the alternative that if native title has not therefore been extinguished in the area of reserve 46888 by the construction of the church, the creation of the reserve in 2002 is a 'past act' under s 228(3)(b)(ii) of the NTA. That subparagraph provides that, subject to subs (10), an act that takes place on or after 1 January 1994 is a past act if it takes place 'in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith before 1 July 1993, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made'. The first respondents submit that the affidavit evidence of Mr Farrar establishes that there was a commitment, arrangement or undertaking given in the 1970s by the State to the Roman Catholic Church that the area in question would be reserved for a church.
33 Reserve 46888 was created on 19 August 2002, that is after 1 January 1994. The evidence of Mr Farrar satisfies me that the State in creating that reserve gave effect to a commitment, arrangement or undertaking made to the Roman Catholic Church before 1 July 1993 of which there is written evidence created at or about the time the commitment, arrangement or undertaking was made.
34 Therefore the creation of the reserve was a category D past act to which the
non-extinguishment principle applies and reserve 46888 should be included in the Second Schedule as an 'other interest'.